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2004 DIGILAW 148 (AP)

P. Satyakala v. P. Chandrakala

2004-02-09

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE respondents filed O. S. No. 119 of 1995 in the Court of the Junior Civil Judge, nalgonda, against the appellants seeking the relief of permanent injunction restraining them from letting their drain water along with the southern wall in front of the house of the plaintiff, bearing No. 6-3-10/1/1, situated at ramagiri, Nalgonda. ( 2 ) THE appellants filed their written statement and issues were framed. The 1st respondent was examined as P. W. 1 and documents Exs. A-1 to A-8 were marked on her behalf. The D. Ws. 1 and 2 were examined on behalf of the appellants herein and Exs. B-1 to B-10 were marked. The trial court dismissed the suit. It however directed the appellants herein to lay an under ground pipeline in the place of the existing drain in front of the house of the respondents. They were also permitted to let the rain water from their house into the municipal drain, situated on the north of the plaintiffs house. Feeling aggrieved by the same, the respondents preferred A. S. No. 10 of 1999 in the court of the III Additional District Court (I Fast Tract court), Nalgonda. The appeal was allowed through Judgment dated 14-8-2003. Hence, the Second Appeal by the defendants. ( 3 ) THE learned counsel for the appellants submits that at the instance of the respondent an Advocate-Commissioner was appointed by the trial Court and in his report the Commissioner had categorically stated that the defendants have no other alternative except to let the drain and rain water into the municipal drain existing on the northern side of the house of the plaintiff and that the defendants have been using the drain in question since last several years. He submits that the lower appellate Court did not consider the claim of the appellants herein as an easement by necessity. He further submits that the trial Court has taken all these aspects into account and directed the defendants to lay an underground pipeline to let the drain water. He submits that the lower appellate Court did not consider the claim of the appellants herein as an easement by necessity. He further submits that the trial Court has taken all these aspects into account and directed the defendants to lay an underground pipeline to let the drain water. ( 4 ) SRI M. Ramarao, learned counsel for the respondents on the other hand, submits that once the trial Court recorded the finding that the land in front of the house of the plaintiff belongs to her, the question of permitting the defendants to let the drain water either through the pipe line or through the open drain does not arise. He submits that the report of the Advocate- commissioner was inconclusive and does not reflect the correct state of affairs. ( 5 ) THE 1st respondent filed the suit seeking an injunction restraining the appellants from letting the drain water from their house into the municipal drain existing by the side of her house. Since the matter involved verification of the physical features on the site, the trial Court appointed an advocate-Commissioner on the request made by the 1st respondent herself. The commissioner inspected the site in the presence of both the parties. He reported that there is no alternative for the appellants except to allow the rain and drain water from their premises into the municipal drain through the vacant land in front of the house of plaintiff. He has also recorded a finding that it is not possible to let the water into any other drain on account of the levels and that the drain in question was existing since many years. The trial Court took these aspects into account and held that the 1 st respondent was not entitled to permanent injunction against the appellant. However, it protected the interests of the respondent by directing the appellants to put an underground pipe line and thereby avoid nuisance and inconvenience to the respondent. ( 6 ) THE lower appellate court did not appreciate the report of the Advocate- commissioner in its proper perspective. The respondent did not choose to examine the commissioner, much less elicited anything from him to contradict the findings recorded in the report. The lower appellate Court was impressed mainly on the question of title of the respondents over the land. The respondent did not choose to examine the commissioner, much less elicited anything from him to contradict the findings recorded in the report. The lower appellate Court was impressed mainly on the question of title of the respondents over the land. It omitted to consider the question of easement by necessity that was pleaded by the appellants, and supported by the report of the Commissioner. It should not be forgotten that the appellants are not claiming any right of possession over any land of the respondents. A passage of 9 width is said to be existing in front of the house of the respondents. The drain was existing in that passage since last several years before the suit was filed, as is evident from the report of the Commissioner. ( 7 ) THE trial Court took the view that the respondents ought to have sought for a mandatory injunction in case she was facing any inconvenience on account of the existence of the drain. The lower appellate court did not deal with this aspect of the matter at all. Permanent injunction can be issued only to prevent the defendants from bringing about any new state of affairs. Since the drain was existing even by the time the suit was filed, the suit itself was not maintainable for permanent injunction. Having discussed the matter from this perspective, the trial Court directed the appellants to put an under ground drainage to avoid inconvenience and nuisance to the respondents. No exception can be taken to such a course of action. ( 8 ) IN that view of the matter the appeal is allowed and the Judgment and Decree of the lower appellate Court in A. S. No. 10 of 1999 is set aside. The decree passed by the trial court in O. S. No. 119 of 1995 is sustained. In addition to that, it is directed that in case the 1 st respondent undertakes any construction in her site and it necessitates the shifting of the drain within the 9 feet strip in front of the house of the respondent-plaintiff, the appellants shall be under an obligation to do the same within four weeks from the date of service of notice, that may be issued by the respondent in this regard. No costs.